Bare v. . Thacker

The judgment of nonsuit was entered upon the theory that the matter, now sought to be litigated, was waived by the plaintiff in his suit on the debt, and that an independent action in tort may not be brought to establish the fraud, after judgment has been taken on the debt, in the contracting of which, it is alleged, the fraud was practiced. C. S., 768, subsection 4.

It is conceded that the issue of fraud was not raised in the first suit. Defendant says in his answer: “There was no allegation of fraud in the former complaint, no issue submitted to the jury and no order of arrest served in said…